Ganesan, Murugesan and G. Sankar vs Palanisamy and Others

M. Venugopal, J.—The civil revision petitioners/defendants 6 to 8 he filed the present revision as against the order passed in unnumbered I.A. No. -- of 2008 in I.A. No. 1023 of 2007 in O.S. No. 331 of 2007 on the file of District Munsif, Sankari dated 05.08.2008 in rejecting the same as not maintainable.

The prayer of the revision petitioners/defendants 6 to 8 in the said unnumbered application is to the effect that they desire to cross examine the respondents/plaintiffs in regard to the documents filed by them in I.A. No. 1023 of 2007. It appears that in I.A. No. 1023 of 2007 filed by the respondents/plaintiffs under Order 39 Rule 1 of Civil Procedure Code, nearly 7 documents have been marked on their side. Only at that stage, the unnumbered application I.A. No. --- of 2008 has been filed by the defendants praying for permission of the Court to cross examine the respondents /petitioners/plaintiffs.

The trial Court, by placing reliance on the decision of this Court in Kannammal Vs. Bagyammal, to the effect that affidavit filed in support of petition for interim injunction does not attract Order 19 Rule 2 of CPC and such affidavit was not filed as evidence and therefore, the petition for cross examination of deponent of affidavit is not maintainable, has dismissed the said application.

The learned Counsel for the petitioners urges before this Court that order of the trial Court dated 05.08.2008 in rejecting the unnumbered I.A. No. --- of 2008 is against law since the documents filed by the respondents/plaintiffs required definite cross examination and further that the trial Court has misconstrued the scope of Order 19 Rule 2 of CPC and therefore, prays for allowing the revision.

It is to be borne in mind that the ingredients of Order 19 Rule 2 of CPC apply for deciding an application for grant of temporary injunction under Order 39 of Rule 1 of Civil Procedure Code, besides the principles of natural justice having regard to the statutory provisions adumbrated in Section 30 and Order 19 Rule 1 and 2 of CPC read with Order 39 Rule 1. It is quite clear that a Court of law possesses power to call the deponent of an affidavit for cross examination, when an affidavit has been filed in support of an application under Order 39 Rule 1 of Civil Procedure Code. As a matter of fact, Order 19 Rule 2 enjoins "any application" and as such this expression will include within its ambit the application for grant of temporary injunction under Order 39 Rule 1 of CPC as well. In fact, Rule 2 of Order 19 of CPC does not exclude the application made under Order 39 Rule 1 in which facts may be proved by affidavit.'' Therefore, the power of the Court to call the deponent for cross examination with an affidavit filed in support of application Order 39 Rule 1 of CPC is untrammelled and viewed in this perspective, this Court allows the civil revision petition and set aside the order of the trial Court in unnumbered I.A. No. --- of 2008 rejecting the same as not maintainable, since the view taken by it, is per se not correct in the eye of law.

In fine, the Civil Revision Petition is allowed. Consequently, the order passed in unnumbered I.A. No. --- of 2008 dated 05.08.2008 is set aside for the reasons assigned by this Court in this revision. Further, the trial Court is directed to number the unnumbered I.A. and to take the same on its file and issue notice to the other side and after receipt of counter is to dispose of the merits in accordance with law and in the manner known to law. Having regard to the facts and circumstances of the case, there shall be no order as to costs. Connected miscellaneous petition is closed.